Allowed

Suresh S/O Late Shri Pema Mehrat v. State of Rajasthan

Rajasthan HC29 May 2024SOSA/263/2023

Case brief

AI extract

What is this about?

Suspension of sentence application in a POCSO conviction appeal. The victim had stated she did not know the accused, and the photograph shown to her by the prosecution was not on record. Finding it a fit case and noting the appeal would take time, the court suspended the sentence subject to bail conditions.

What did the court decide?

Sentence suspended till disposal of appeal; bail on personal bond of Rs.1,00,000/- with two sureties of Rs.50,000/- each, subject to deposit of fine and periodic appearance.

Suresh S/O Late Shri Pema Mehrat Vs State of… — Child Sexual Offences (POCSO) | Rajasthan HC (2024)

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[2024:RJ-JP:25543]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 263/2023

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S.B. Criminal Appeal No. 2577/2022

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Suresh S/o Late Shri Pema Mehrat, Aged About 28 Years, R/o Village Lasani, Police Station Beawar Sadar, District Ajmer (At Present Confined In Central Jail, Ajmer)

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----Accused-applicant

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Versus

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The State Of Rajasthan, Through Its P.P

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----Non-Applicant-Respondent

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For Petitioner(s) : Mr. Vinay Pal Yadav For Respondent(s) : Mr. Atul Sharma, PP

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HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

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Order

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29/05/2024

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Counsel for the appellant submits that when the statements of the prosecutrix were recorded in the Court, she has stated that she did not know the accused Suresh. Counsel submits that even in her cross-examination she has repeated the same version. Counsel submits that when the statements of the victim were recorded, he was not produced from the Jail and he was in judicial custody. Counsel submits that during the course of recording of her statements photo of one Suresh was shown to the victim by the Public Prosecutor, that photo was not marked as exhibit and not produced on the record. Counsel submits that merely showing photograph of any person does not indicate that the appellant was the same person whose photo was shown to the victim. Counsel

[2024:RJ-JP:25543]

[SOSA-263/2023]

(2 of 4)

submits that in the instant case there is gross violation of Section 273 of the Code of Criminal Procedure and as per Section 273 Cr.P.C., it is mandatory that evidence of the witnesses should be recorded in the presence of the accused, or in his absence, his pleader. Counsel further submits that there is no corroborating evidence against the appellant as no FSL/DNA Report has been produced on the record to establish the allegation of rape against the appellant. Counsel submits that the disposal of the appeal is bound to take time, so the sentence of the appellant be suspended till disposal of the appeal.

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Per contra, learned Public Prosecutor has opposed the suspension of sentence application and submits that as per Section 36 of the POCSO Act, 2012 it is not mandatory that the statement of the victim should be recorded in the presence of the accused. Counsel submits that as per Section 36 of the POCSO Act of 2012, the accused should not be exposed to the victim then statement of such child is recorded. Counsel submits that under these circumstances the Public Prosecutor has rightly shown the photo of the appellant to the victim and she has identified the appellant after seeing the photograph. Hence under these circumstances the sentence of the appellant should not be suspended.

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Heard learned counsel for the appellant and learned Public Prosecutor and perused the material available on record.

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Considering the arguments put forward by the counsel for the appellant and looking to the fact that in the examination-inchief as well as in the cross-examination, the victim has specifically stated that she did not know the accused Suresh,

[2024:RJ-JP:25543]

[SOSA-263/2023]

(3 of 4)

simply on the basis of one photo shown by the Public Prosecutor, the appellant has been found guilty. The said photo is not available on the record and as the same has not been marked as exhibit and without further commenting on merits and demerits of the case and looking to the fact that disposal of the appeal is likely to take time, this Court deems it just and proper that it is a fit case for suspending the sentence awarded to the accused-appellant.

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Accordingly, the application for suspension of sentence filed by the applicant under Section 389 Cr.P.C. is allowed and the sentence awarded by the Court of Learned Special Judge Protection of Children From Sexual Offence Act, 2012 and Commission for Protection of Child Right Act 2005, No.1 Ajmer vide judgment dated 15.10.2022 in Sessions Case No.47/2021 against the appellant Suresh S/o Late Shri Pema Mehrat shall remain suspended till final disposal of the aforesaid appeal, subject to the condition that the appellant shall deposit the fine amount, as imposed by the Trial Court and he shall be released on bail provided he executes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Court for appearance before this Court on 02.07.2024 and whenever ordered to do so, till the disposal of the appeal on the conditions indicated below:-

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That he shall appear before the trial Court in the month of January of every year till the appeal is decided.

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That if the applicant changes the place of residence and mobile number, he will give in writing his changed address and mobile number to the trial Court as well as to the counsel in the High Court.

(4 of 4)

[2024:RJ-JP:25543]

[SOSA-263/2023]

Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

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Appellant shall deposit a fine amount as imposed by the learned trial Court.

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The learned trial Court shall keep the record of attendance of the accused-appellant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accusedappellant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused-appellant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.

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(ANOOP KUMAR DHAND),J

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Garima/32

Suresh S/O Late Shri Pema Mehrat v. State of Rajasthan

Case brief

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Suresh S/O Late Shri Pema Mehrat v. State of Rajasthan

Case brief

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